Executive  Participation  in  Legislation 
as  a  Means  of  Increasing 
Legislative  Efficiency 


By 

JAMES  W.  GARNER 


University  of  Illinois 


Reprinted  from  the  Proceedings  of  the 
American  Political  Science  Association ,  IQI3-IQI4 


/ 


\ 

0  3  \ 


Digitized  by  the  Internet  Archive 
in  2017  with  funding  from 

University  of  Illinois  Urbana-Champaign  Alternates 


i 


https://archive.org/details/executiveparticiOOgarn 


Reprinted  from  The  Proceedings  of  the  American  Political  Science  Association,  1913-1914 


EXECUTIVE  PARTICIPATION  IN  LEGISLATION  AS  A 
MEANS  OF  INCREASING  LEGISLATIVE  EFFICIENCY 

BY  JAMES  W.  GARNER 
University  of  Illinois 

I  think  we  hazard  nothing  in  saying  that  the  problem  of  efficient  legis¬ 
lation  under  modern  conditions  is  one  of  the  most  difficult  tasks  of  gov¬ 
ernment.  This  is  due  partly  to  the  unwieldiness  of  overgrown  legis¬ 
lative  assemblies  and  the  lack  of  responsible  leadership;  partly  to  the 
enormous  demand  for  legislation,  to  meet  which  overtaxes  the  legis¬ 
lative  machine;  and  partly  to  the  complexity  and  intricacy  of  modern 
legislation,  which  enhances  the  difficulty  of  framing  statutes  and  re¬ 
quires  an  amount  of  technical  knowledge  which  the  average  legislator 
does  not  possess.  A  legislative  assembly  composed  of  five  or  six  hundred 
members  without  an  effective  organization  and  without  recognized  and 
responsible  leaders  is  not  very  unlike  a  mob.  Such  a  body,  like  other 
mobs,  must  be  guided  and  led  if  it  accomplishes  its  work. 

Mr.  Bryce  has  indicted  the  possible  solutions  of  the  problem  of  legis¬ 
lation  by  assemblies  of  this  character.1  One  is  to  restrict  the  action  of  the 
assembly  to  a  comparatively  few  simple  matters,  reserving  the  others 
to  a  smaller  body  or  to  the  executive.  This  was  the  method  of  the 
Romans,  whose  comitia  had  merely  the  power  of  adopting  or  rejecting 
measures  proposed  by  the  magistrates.2  In  a  modified  form,  it  was  also 
the  method  of  the  French  during  the  second  Empire,  when  the  laws  were 
drafted  by  the  council  of  state  and  laid  before  the  legislature  by  the 
Emperor,  who  alone  had  the  right  of  initiation.3  The  second  solution  is 
for  the  legislature  to  delegate  the  power  of  legislation  to  a  single  commit¬ 
tee  composed  of  members  who  are  at  the  same  time  the  chief  officers  of 
the  executive  department,  the  chamber  merely  retaining  the  right  of 
veto.  This  is  the  system  actually  followed  in  England  and  to  a  less  de¬ 
gree  in  other  countries  where  the  true  parliamentary  system  is  in  force. 

A  third  solution  is  for  the  assembly  to  divide  itself  into  a  number  of 
committees  among  which  all  legislative  projects  are  distributed  and  which 

1  The  American  Commonwealth,  vol.  i,  pp.  156-157. 

2  Compare  Pelham,  Outlines  of  Roman  History,  pp.  159-161. 

3  Constitution  of  1852,  title  iii,  sec.  8;  title  vi,  sec.  50. 

176 


AMERICAN  POLITICAL  SCIENCE  ASSOCIATION 


177 


sift  out  such  as  in  their  judgment  are  worthy  of  being  enacted  into  law. 
These  measures  and  these  only  are  usually  adopted  by  the  assembly. 
This  is  the  American  method.  Of  these  three  methods,  the  first  may  be 
ruled  out  of  consideration,  leaving  the  choice  to  be  made  from  the  last 
two. 

The  parliamentary  system  in  one  form  or  another  is  the  solution  which 
has  been  adopted  in  the  vast  majority  of  countries,  whether  they  be 
monarchies  or  republics,  whether  they  have  written  or  unwritten  con¬ 
stitutions.  In  some  of  them,  the  ministers  are  at  the  same  time  members 
of  the  legislature;  in  others  they  are  not,  yet  practically  everywhere  they 
have  seats  in  the  legislature  with  the  right  to  initiate  legislation  and  to 
be  heard  whenever  they  demand  it.4 

Wherever  large  and  unwieldy  assemblies  have  attempted  to  legislate 
as  a  whole  without  the  initiation  and  guidance  of  leaders,  they  have  not 
succeeded.  Mr.  Sidney  Low  in  his  The  Governance  of  England 5  has  pointed 
out  how  the  power  of  legislation  in  the  house  of  commons  has  gradu¬ 
ally  shifted  from  the  house  as  a  whole  to  the  ministry,  and  Sir  Courtenay 
Ilbert,  President  A.  L.  Lowell  and  Mr.  James  Bryce  have  dwelt  upon 
the  increasing  tendency  of  parliament  to  delegate  the  power  of  sub¬ 
sidiary  legislation  to  the  executive  officers.  “The  house,”  says  Mr. 
Low,  “is  scarcely  a  legislating  chamber,  it  is  a  machine  for  discussing  the 
legislative  projects  of  ministers.”  Lord  Salisbury,  who  spoke  with  the 
knowledge  which  comes  from  long  experience,  said  in  a  speech  at  Edin¬ 
burgh  in  1894;  “We  have  reached  the  point  where  discussion  is  possible 
in  the  cabinet,  but  for  any  effective  or  useful  purpose,  it  is  rapidly  be¬ 
coming  an  impossibility  in  the  house  of  commons.”  The  house  is  now 
little  more  than  a  “ventilating  chamber.”  Its  most  important  function, 
as  Mr.  Low  remarks,  and  as  Mr.  Bagehot  many  years  ago  pointed  out,6 
is  selective,  that  is  its  chief  role  is  the  choosing  of  leaders  whom  the  house 
obeys  and  follows.  It  proceeds  on  the  theory  that  its  principal  task  is 
to  get  good  laws  made,  not  to  make  them  itself.  In  theory  the  right  of 

4  This  is  true  in  Austria,  Belgium,  Brazil,  Chili,  Costa  Rica,  Colombia,  Denmark, 
France,  the  German  Empire,  Great  Britain,  Greece,  Gautemala,  Honduras,  Hayti, 
Italy,  Mexico,  The  Netherlands,  Nicaragua,  Norway,  Portugal,  Prussia,  Spain, 

Sweden,  Switzerland,  and  Salvador.  The  Constitution  of  the  Southern  Confed¬ 
eracy  seems  to  have  contemplated  the  introduction  of  parliamentary  methods 
since  it  authorized  congress  to  grant  the  right  to  cabinet  ministers  to  occupy  seats 
in  either  house  with  the  privilege  of  discussing  any  measure  pertaining  to  their 
departments. 

6  Page  75. 

•  The  English  Constitution,  2d  edition,  pp.  200-201. 


178 


PROCEEDINGS  OF  THE 


every  member  to  introduce  bills  and  to  have  them  passed  by  the  house 
remains,  but  in  fact,  four-fifths  of  all  the  bills  that  are  passed — nineteen- 
twentieths  of  those  that  are  of  any  great  importance,  are  passed  upon  the 
initiation  and  at  the  instance  of  the  cabinet,  that  is,  the  executive.7  The 
attempt  of  the  French  chamber  itself  to  legislate  as  well  as  to  govern, 
and  its  disinclination  to  follow  its  chosen  leaders  are  doing  more  than 
anything  else  to  undermine  the  parliamentary  system  in  that  country. 
The  French  political  writers  are  unanimous  on  this  point.  What  has 
happened  in  the  house  of  commons  is  likely  to  happen  in  every  overgrown 
legislative  assembly  where  the  demands  for  legislation  are  enormous,  be¬ 
cause  experience  is  more  and  more  demonstrating  the  truth  of  Hamilton’s 
saying  that  “in  all  legislative  assemblies,  the  greater  the  number  com¬ 
posing  them,  the  fewer  the  men  who  will,  in  fact,  direct  their  proceed¬ 
ings.”8  We  are  beginning  to  appreciate  the  force  of  John  Stuart  Mill’s 
saying  that  a  distinction  should  be  made  between  legislating  and  getting 
good  legislation  enacted  and  that  “the  only  task  to  which  a  representa¬ 
tive  assembly  can  possibly  be  competent  is  not  that  of  doing  the  work 
itself  but  of  causing  it  to  be  done;  of  determining  to  whom  or  to  what 
sort  of  people  it  shall  be  confided  and  of  giving  or  withdrawing  its  na¬ 
tional  sanction  of  it  when  performed.”9 

The  thing  which  distinguishes  the  legislative  organization  and  pro¬ 
cedure  of  the  United  States  from  that  of  practically  every  other  country 
is  the  almost  complete  disjunction  of  the  legislative  department  from  the 
executive  department.  'The  Constitution  debars  cabinet  ministers 
from  membership  in  bottr  houses  and  parliamentary  practice  denies 
them  the  entree  thereto  either  for  the  purpose  of  introducing  bills,  for 
defending  the  executive  against  attack,  for  furnishing  information,  or 

7  Testimony  of  James  Bryce  before  the  committee  of  the  house  of  representa¬ 
tives  on  various  bills  proposing  the  establishment  of  a  congressional  legislative 
reference  bureau.  Hearings,  February  26,  1912,  p.  8;  cf.,  also,  Sir  Courtenay 
Ilbert,  Legislative  Methods  and  Forms,  p.  215,  for  a  table  of  statistics  showing  the 
number  of  government  bills  and  private  members’  bills  passed.  For  example, 
in  1900,  forty-nine  government  bills  were  passed  and  only  fifteen  private  members’ 
bills. 

8  The  Federalist,  No.  58,  Ford’s  ed.,  p.  389. 

9  Representative  Government,  (Universal  Library  edition),  pp.  85, 95.  See  p.  96 
for  his  proposal  that  legislation  should  be  delegated  to  a  small  permanent  legisla¬ 
tive  commission.  Compare  also  his  autobiography  pp.  264-265  where  he  says, 
"there  is  a  distinction  between  the  functions  of  making  laws,  for  which  a  numerous 
popular  assembly  is  radically  unfit,  and  that  of  getting  good  laws  made,  which  is 
its  proper  duty  ani  cannot  be  satisfactorily  performed  by  any  other  authority.’’ 


AMERICAN  POLITICAL  SCIENCE  ASSOCIATION 


V 


179 

for  participating  in  debate.  The  power  to  recommend  measures  for 
the  consideration  of  the  legislature  ordinarily  means  little  to  an  execu¬ 
tive  who  cannot  in  person  or  through  his  ministers  appear  in  the  chamber 
for  the  purpose  of  explaining  and  advocating  the  adoption  of  his  recom¬ 
mendations,  and  to  one  who  belongs  to  a  party  which  is  in  the  minority 
in  the  legislature  it  means  still  less.  The  result  is,  executive  messages 
have  more  and  more  degenerated  into  perfunctory  summaries  of  depart¬ 
mental  conditions  or  lengthy  rhetorical  discourses  through  which  the 
executive  addresses  the  great  American  public  upon  various  political, 
economic  and  social  questions,  some  of  which  lie  quite  without  the  juris¬ 
diction  of  the  national  legislature. 

While  the  veto  power  may  be  used  to  prevent  bad  legislation,  it  cannot 
be  employed  for  the  purpose  of  compelling  legislative  action,  to  carry 
out  the  pledges  of  the  party  by  whom  the  president  has  been  chosen. 
It  is  not  a  means  of  leadership  or  control. 

\In  the  beginning,  a  procedure  akin  to  parliamentary  methods  was 
aWally  followed  by  congress.  The  law  organizing  the  treasury  de¬ 
partment  made  it  the  duty  of  the  secretary  of  the  treasury  to  “make 
report  and  give  information  to  either  branch  of  the  legislature  in  person 
or  in  writing  respecting  all  matters  referred  to  him  by  either  house  or 
which  shall  appertain  to  his  office.”  In  the  debates  on  the  bill,  it  was 
objected  that  it  would  result  in  the  introduction  of  the  parliamentary 
system  and  the  assertion  was  not  denied.  In  practice,  the  cabinet  mem¬ 
bers  frequently  appeared  in  the  house  for  the  purpose  of  giving  informa¬ 
tion  and  advice  and  for  consultation.10  Hamilton,  especially,  assumed 
the  role  of  a  crownjninister,  and  his  example  was  followed  by  other  cabi¬ 
net  members.11  (At  the  time,  all  branches  of  the  national  government 
were  housed  in  thS^ame  building,  so  that  easy  communication  between 
the  executive  and  legislative  departments  was  greatly  facilitated;  in 
fact,  they  were  in  almost  as  close  touch,  says  Professor  Ford,  as  if  the  cab¬ 
inet  officers  had  been  members  of  congress.12  For  some  years  these  close 
relations  were  maintained,  and  the  cabinet  ministers  exerted  an  impor¬ 
tant  influence  in  the  shaping  of  legislation.13  When  finally  the  connec¬ 
tion  was  definitely  severed  and  the  cabinet  members  excluded  from 
congress,  there  were  some  who  regarded  the  change  with  deep  regret. 

10  See  the  annals  of  the  first  congress,  pp.  66,  51,  684,  689. 

11  Ford,  Rise  and  Growth  of  American  Politics,  p.  81. 

12  Ibid.,  p.  226. 

13  Compare  McConachie,  Congressional  Committees,  pp.  221  et  seq.,  also  Follett, 
The  Speaker,  pp.  319,  327,  et  seq. 


180 


PROCEEDINGS  OF  THE 


Fisher  Ames,  for  example,  speaking  of  the  abandonment  of  the  early 
practice  said: 

The  heads  of  departments  are  chief  clerks.  Instead  of  being  the  min¬ 
istry,  the  organs  of  the  executive  powers,  and  imparting  a  kind  of  mo¬ 
mentum  to  the  operation  of  the  laws,  they  are  precluded  even  from  com¬ 
munication  with  the  House  by  reports.  In  other  countries  they  may 
speak  as  well  as  act.  We  allow  them  to  do  neither.  We  forbid  them 
even  the  use  of  a  speaking-trumpet;  or  more  properly,  as  the  Consti¬ 
tution  has  ordained  that  they  shall  be  dumb,  we  forbid  them  to  explain 
themselves  by  signs.  Two  evils,  obvious  to  you,  result  from  all  this. 
The  efficiency  of  government  is  reduced  to  a  minimum — the  proneness 
of  a  popular  body  to  usurpation  is  already  advancing  to  its  maximum; 
committees  already  are  the  ministers;  and  while  the  house  indulges  a 
jealousy  of  encroachment  in  its  functions,  which  are  properly  deliber¬ 
ative,  it  does  not  perceive  that  these  are  impaired  and  nullified  by  the 
monopoly  as  well  as  the  perversion  of  information  by  these  committees. 

It  is  not  at  all  improbable  that  the  full  parliamentary  system  would 
have  been  introduced  in  the  beginning  had  it  not  been  for  the  widespread 
fear  of  executive  domination  and  tyranny  due  to  the  arbitrary  conduct 
of  the  crown  and  of  the  colonial  executives  in  America  which  had  pro¬ 
duced  very  strained  relations  between  them  and  the  legislative  assem¬ 
blies.  The  result  was  that  the  English  cabinet  system  was  in  more  or  less 
disrepute  in  America.  In  its  existing  form,  it  possesses  many  features, 
as  Mr.  Wilson  remarks,  that  did  not  invite  republican  imitation.14  To 
most  Americans,  the  English  constitution  was  that  of  George  III  and 
Lord  North  rather  than  that  of  the  Whigs,  and  the  ministry  was  looked 
upon  as  a  coterie  of  royal  favorites  who  were  controlled  by  the  crown 
rather  than  by  the  house  of  commons.  Under  these  circumstances,  it 
was  difficult  to  believe  that  the  legislative  and  executive  branches  could 
be  brought  into  close  relations  without  the  legislature  being  dominated 
by  the  executive.  To  avoid  the  danger  of  executive  domination,  it  was 
thought  necessary  to  establish  a  system  of  checks  and  balances  such  as 
the  parliamentary  system  did  not  afford,  and  to  the  Americans  of  the 
latter  eighteenth  century,  this  required  the  complete  separation  of  the 
executive  and  legislative  departments.  Moreover,  the  English  parlia¬ 
mentary  system  was  immature  and  operated  in  practice  with  far  less 
smoothness  and  success  than  it  does  today.  Mr.  Bryce  ventures  the 
opinion  that  it  was  not  adopted  by  the  Americans  because  they  did  not 
know  of  its  existence;  and  that  they  did  not  know  of  its  existence  be- 

14  Congressional  Government,  pp.  308-309. 


AMERICAN  POLITICAL  SCIENCE  ASSOCIATION 


181 


cause  it  was  still  immature,  because  Englishmen  themselves  did  not  un¬ 
derstand  it  and  because  the  recognized  authorities  did  not  mention  it.15 

The  authors  of  the  constitution  were  seduced  by  the  theory  of  a  French¬ 
man16  into  believing  that  it  was  not  only  possible  to  separate  the  legisla¬ 
tive  and  executive  departments,  but  that  their  disjunction  was  one  of  the 
essential  conditions  of  liberty — a  theory  that  was  clearly  disproven  by 
the  experience  of  the  English  constitution  from  which  he  drew  his  illus¬ 
trations.17  The  founders  underrated  the  inconveniences  which  are 
inseparable  from  the  disconnection  of  the  two  departments  and  exagger¬ 
ated  the  dangers  from  establishment  of  close  relations  between  them. 
They  carried  the  principle  of  separation  so  far  that  they  sacrificed  not 
only  the  efficiency  which  comes  from  mutual  collaboration  and  respon¬ 
sible  leadership,  but  each  department  was  made  weaker  within  its  own 
sphere.18  Nevertheless,  as  I  have  stated,  quasi  parliamentary  methods 
were,  in  the  beginning,  followed  in  practice.  The  first  rules  of  the  house 
contained  no  provision  for  committees,  although  later  in  the  session 
provision  was  made  for  a  committee  on  elections.  As  the  membership 
of  the  house  increased  and  the  demands  for  legislation  became  more 
numerous  and  pressing,  the  number  of  committees  was  gradually  mul¬ 
tiplied  until  today  there  are  nearly  as  many  committees  in  the  house 
as  there  were  representatives  in  the  first  congress,  and  each  is  to  all  in¬ 
tents  and  purposes  a  miniature  legislature  in  itself.  From  being  a  real 
legislative  body,  the  house  has  more  and  more  become  a  huge  panel  from 
which  the  actual  legislative  organs  are  selected.  Each  committee  goes 
its  own  way  without  regard  to  the  others;  their  jurisdictions  often  over¬ 
lap;  and  none  are  responsible  for  the  legislation  which  they  recommend. 
The  disadvantages  of  such  a  system  are  evident:  lack  of  cohesion  and 
harmony,  loss  of  responsibility,  waste  of  energy  and  patchwork  legis¬ 
lation.  Committee  hearings  are  public,  but  their  deliberations  are  se¬ 
cret  and  the  debates  are  unreported.  The  light  of  the  nation  cannot  be 
focused  upon  the  doings  of  sixty  or  seventy  such  bodies;  the  public, 
therefore,  must  be  content  with  the  information  which  it  gets  from  the 
debates  in  the  house,  and  these  are,  to  a  large  extent,  irrelevant  oratori- 

16  The  American  Commonwealth,  ed.  of  1910,  vol.  i,  286. 

16  Madison  stated  in  the  Convention  that  Montesqieu  was  the  “oracle  always 
consulted,”  ( Federalist ,  Ford’s  ed.,  p.  320). 

17  Madison  himself  pointed  out  that  “on  the  slightest  view  of  the  British  con¬ 
stitution”  the  departments  were  not  separate  and  that  the  theory  was  subject  to 
many  exceptions  and  limitations.  Ibid,.,  p.  327. 

18  Cf.  Bryce,  American  Commonwealth,  vol.  i,  p.  288. 


182 


PKOCEEDINGS  OF  THE 


cal  performances  intended  for  the  edification  of  the  galleries  or  for  par¬ 
ticular  constituencies  rather  than  serious  discussion  of  the  merits  of 
proposed  legislation. 

As  is  well  known  nine-tenths  of  the  measures  reported  by  the  com¬ 
mittees  are  approved  by  the  house  and  practically  none  which  are  not 
favorably  recommended  by  them  have  any  chance  of  being  enacted 
into  law.  The  result  is  the  committees  have  become  the  real  legislative 
bodies,  and  the  congress  as  a  whole  a  mere  ratifying  organ.  That  such 
a  system  of  legislation  is  a  satisfactory  solution  of  the  problem  of  legis¬ 
lation,  scarcely  anyone  will  seriously  pretend,  and  it  cannot  be  expected 
to  endure  permanently.  The  evils  have  been  dwelt  upon  by  many 
writers.19  Under  such  a  system,  the  house  is  guided  by  a  multiplicity 
of  leaders,  which  is  equivalent  to  saying  that  it  is  without  leaders  in  any 
real  and  effective  sense.  In  the  course  of  the  evolution  of  the  committee 
system,  the  necessity  for  leadership  was  in  some  degree  met  by  the  con¬ 
centration  of  authority  in  the  speaker  and  the  committee  on  rules,  that 
is  to  say,  the  house  tended  to  shift  the  responsibility  from  a  multi¬ 
tude  of  leaders  to  a  single  committee  controlled  by  the  presiding  officer. 
But  against  this  solution  the  majority  of  the  house  rebelled,  and  the 
leadership  of  the  speaker  and  of  the  committee  on  rules  has  recently  been 
repudiated.  Another  solution  must,  therefore,  be  found;  the  house  must 
have  authoritative  leaders;  it  cannot  be  led  by  sixty  odd  committees.20 
There  must  be  some  single  smaller  body  for  examining,  sifting,  and  choos¬ 
ing  from  among  the  enormous  mass  of  bills  with  which  congress  is  now 
almost  continually  overwhelmed,  and  for  steering  through  the  house  the 
measures  for  which  there  is  a  real  need.  The  solution  for  which  there  is 
an  increasing  popular  demand  consists  in  the  introduction  of  executive 
leadership  and  responsibility.  To  accomplish  this  change,  it  is  not 
necessary  to  alter  the  Constitution  or  to  enact  a  statute ;  it  can  be  brought 
about  as  well  by  parliamentary  custom. 

19  Notably  by  Bryce,  “ The  American  Commonwealth,”  vol.  i,  chs.  14-15;  20-21, 
Wilson,  Congressional  Government,  chs.  2,  5;  also  his  Constitutional  Government, 
chs.  3-4;  Godkin,  Unforeseen  Tendencies  in  Democracy,  pp.  96-145;  Ford,  Rise  and 
Growth  of  American  Politics,  chs.  18-22;  Macy,  Party  Organization  and  Machinery, 
chs.  3-4.  Compare,  also,  the  following  remarks  by  Mr.  Henry  L.  Stimson,  criti¬ 
cizing  the  committee  system,  ( The  Independent,  1913,  p.  1225).  “Tremendous 
powers  are  exercised  in  secret  by  men  who,  neither  as  committeemen  nor  as  congress¬ 
men,  are  responsible  to  the  country  at  large.  Congress  is  at  the  mercy  of  any  in¬ 
dividual  or  private  interest  which  can  get  before  any  of  these  committees,  and  on 
an  ex  parte  hearing  impress  the  committeemen  with  a  desirability  of  an  appro¬ 
priation.  Such  legislative  methods  simply  invite  demands  for  improper  favors.” 

20  Compare  especially  on  this  point,  Wilson,  Congressional  Government,  ch.  ii. 


AMEKICAN  POLITICAL  SCIENCE  ASSOCIATION 


183 


<  As  I  have  said,  these  departments  are  now  almost  entirely  disjoined; 
tlife/only  connection  is  through  the  committees  and  this  connection  is 
wholly  unofficial  and  entirely  dependent  upon  the  willingness  of  the  com¬ 
mittees  to  enter  into  relations  with  the  President  or  with  the  heads  of 
departments.  The  maintenance  of  a  certain  relationship  between  the 
two  branches  is  absolutely  necessary,21  and  in  practice  these  relations 
are  and  always  have  been  more  extensive  and  intimate  than  is  generally 
supposed,22  but  they  are  entirely  dependent  upon  the  invitation  of  the 
committees  themselves,  are  unofficial  and  more  or  less  secret  in  character. 

As  it  is,  the  policies  of  the  executive  are  frequently  subjected  to  severe 
criticism  in  Congress  and  this  criticism  is  often  based  upon  misinfor¬ 
mation  or  misunderstanding,  yet  the  President  has  no  official  spokesman 
on  the  floor  to  answer,  explain  or  defend.  Although  the  chosen  leader 
of  his  party  and  more  and  more  regarded  by  the  public  as  responsible 
for  the  fulfillment  of  past  pledges  to  the  nation,  he  is  by  his  very  exclu¬ 
sion  from  the  legislature  deprived  of  the  power  of  leadership  which  makes 
and  effective.23 

and  cooperation  may  be  secured  by  the  following 

1.  By  the  restriction  of  executive  messages  or  addresses,  as  they  now 
are,  to  a  few  definite  recommendations  embodying  the  policies  in  favor 
of  which  the  party  has  pronounced  in  its  platform  or  those  for  which  the 
President  is  willing  to  assume  the  responsibility.  If  this  were  done, 
congress  would  treat  the  recommendations  of  the  President  more  seri¬ 
ously  and  not  as  mere  perfunctory  suggestions  or  popular  addresses  in¬ 
tended  mainly  for  the  country.  The  general  public  would  take  a  deeper 
interest  in  the  executive  address  because  of  its  brevity  and  its  definiteness 
and  this  would  induce  the  formation  of  a  more  definite  public  opinion  to 
which,  if  it  were  in  support  of  the  measures  recommended,  the  President 
might  appeal  with  greater  effectiveness  in  his  efforts  to  compel  legisla¬ 
tive  action. 

21  Compare,  Follett,  The  Speaker,  pp.  327-329. 

22  “The  usage  from  the  commencement  of  the  government”  said  Mr.  Cambreling, 
chairman  of  the  ways  and  means  committee  in  1837,  “has  been  for  the  committee 
through  its  chairman  to  consult  the  head  of  the  department  in  regard  to  such  meas¬ 
ures  as  he  may  recommend  for  the  consideration  of  Congress,  for  the  secretary  to 
attend  upon  and  confer  with  the  committee,  if  invited,  and  to  furnish  the  drafts 
of  bills  embracing  his  own  proposals,  when  requested  to  do  so.”  McConachie, 
Congressional  Committees,  p.  223. 

23  Compare  Macy,  op.  cit.,  p.  25,  and  Wilson,  Constitutional  Government,  pp.  67, 


jsibility  real 
leadership 

wh  bh^ds : 


202. 


184 


PROCEEDINGS  OF  THE 


2.  By  allowing  the  executive  the  right  to  initiate  bills  and  by  giving 
precedence  to  administration  bills  over  other  measures,  as  is  the  prac¬ 
tice  in  countries  where  the  parliamentary  system  prevails  and  which  is 
now  the  practice  in  the  legislature  of  Illinois.24  This  done,  let  the  major¬ 
ity  in  congress  frankly  recognize  the  leadership  which  the  country  has 
conferred  upon  the  President,  as  well  as  the  responsibility  which  the 
nation  more  and  more  insists  that  he  shall  bear.  Writing  when  he  was 
yet  only  a  student  of  politics,  Mr.  Wilson  says: 

So  far  as  the  government  is  concerned  there  is  but  one  national  voice 

in  the  country,  and  that  is  the  voice  of  the  President . He 

alone  is  chosen  by  the  nation  at  large.  Representatives  are  the 
elect  of  petty  constituencies  and  the  senators  are  chosen  by  the  states; 
he  is,  therefore,  the  only  spokesman  of  the  nation,  the  leader  of  his 
party,  and  he  cannot  escape  that  leadership  except  by  his  own  inca¬ 
pacity . Leadership  in  government  naturally  belongs  to  the 

executive  officers  who  are  daily  in  contact  with  practical  conditions  and 
exigencies,  the  law  making  part  of  the  government  ought,  therefore,  to 
be  very  hospitable  to  suggestions  from  the  executive  department  in  re¬ 
gard  to  legislative  needs.25 

24  A  rule  adopted  by  the  Illinois  house  of  representatives  at  its  last  session  reads 
as  follows:  “When  any  bill  or  resolution  is  introduced  for  the  purpose  of  carrying 
into  effect  any  recommendation  of  the  governor,  it  may  by  executive  message 
addressed  to  the  speaker  of  the  house  be  made  an  administrative  measure.  The 
administrative  measure  may  be  sent  to  the  appropriate  committee  or  it  shall  upon 
request  of  its  introducer,  be  sent  to  committee  of  the  whole  House.  When  such  a 
measure  had  been  reported  out  of  committee,  it  shall  have  precedence  in  the  con¬ 
sideration  of  the  house  over  all  other  measures  except  appropriation  bills.  The 
house  shall  sit  in  committee  of  the  whole  for  the  consideration  of  administration 
measures  on  Tuesday  morning  immediately  after  reading  of  the  house  journal.” 

“The  purpose  of  this  rule”  says  Senator  Hull,  its  author,  “is  obvious.  It  is 
intended  to  give  assurance  to  the  governor  that  measures  which  he  recommends 
will  be  given  fair  consideration  and  by  such  assurances  to  impose  upon  him  the 
obligation  to  have  a  legislative  program.  By  so  doing,  it  is  hoped  to  give  greater 
significance  to  party  platforms  and  to  make  in  some  small  degree  for  party  re¬ 
sponsibility  and  party  government.”  American  Political  Science  Review,  May, 
1913,  p.  239. 

28  “Some  of  our  Presidents”  says  Mr.  Wilson,  “have  deliberately  held  themselves 
off  from  using  the  full  power  they  might  legitimately  have  used,  because  of  con¬ 
scientious  scruples,  because  they  were  more  theorists  than  statesmen.  They  have 
held  the  strict  literary  theory  of  the  Constitution,  the  Whig  theory,  the  Newtonian 
theory,  and  have  acted  as  if  they  thought  Pennsylvania  Avenue  should  have  been 
still  longer  than  it  is;  that  there  should  be  no  intimate  communication  of  any  kind 
between  the  capitol  and  the  White  House ;  that  the  President  as  a  man  was  no  more 
at  liberty  to  lead  the  houses  of  congress  by  persuasion  than  he  was  at  liberty  as 
President  to  dominate  them  by  authority — supposing  that  he  had,  what  he  has 
not,  authority  enough  to  dominate  them.” 


AMERICAN  POLITICAL  SCIENCE  ASSOCIATION 


185 


f  3.  By  permitting  the  cabinet  members  to  occupy  seats  in  either  house 
o#-e<mgress  with  the  privilege  of  answering  questions,  giving  information, 
and  of  advocating  the  adoption  of  measures  which  the  executive  has  recom¬ 
mended.  This  is  not  a  new  proposal.  It  was  urged  by  a  select  committee 
of  the  house  in  the  thirty-eighth  congress  and  again  by  a  select  committee 
of  the  senate  in  the  forty-sixth  congress  (1881).  The  advantages  of 
such  an  arrangement  were  dwelt  upon  by  Judge  Story  in  his  work  on 
The  Constitution ;26  more  recently  still,  it  has  been  urged  by  President  Taft 
in  a  special  message  to  congress,27  and  it  is  well  known  that  the  idea  has 

26  Sec.  869.  Speaking  on  this  point,  Judge  Story  said:  “The  heads  of  the  depart¬ 
ments  are,  in  fact,  thus  precluded  from  proposing  or  vindicating  their  own  measures 
in  the  face  of  the  nation  in  the  course  of  debate,  and  are  compelled  to  submit  them 
to  other  men  who  are  either  imperfectly  acquainted  with  the  measures  or  are  in¬ 
different  to  their  success  or  failure:**  Thus  that  open  and  public  responsibility  for 
measures  which  properly  belongs  to  the  executive  in  all  governments,  and  espe¬ 
cially  in  a  republican  government,  as  its  greatest  security  and  strength,  is  com¬ 
pletely  done  away.  The  executive  is  compelled  to  resort  to  secret  and  unseen  in¬ 
fluences,  to  private  interviews,  and  private  arrangements  to  accomplish  its  own 
appropriate  purposes,  instead  of  proposing  and  sustaining  its  own  duties  and  meas¬ 
ures  by  a  bold  and  manly  appeal  to  the  nation  in  the  face  of  its  representatives. 
One  consequence  of  this  state  of  things  is,  that  there  never  can  be  traced  home  to 
the  executive  any  responsibility  for  the  measures  which  are  planned  and  carried 
at  its  suggestion.  Another  consequence  will  be  (if  it  has  not  yet  been)  that  meas¬ 
ures  will  be  adopted  or  defeated  by  private  intrigues,  political  combinations, 
irresponsible  recommendations,  and  all  the  blandishments  of  office,  and  all  the 
deadening  weight  of  silent  patronage.” 

27  Congressional  Record,  January  13,  p.  12.  Recommending  that  cabinet  mem¬ 
bers  be  allowed  to  attend  the  sessions  of  the  house  and  senate  and  to  take  part  in 
the  debate,  Mr.  Taft  said:  “The  rigid  holding  apart  of  the  executive  and  the  legis¬ 
lative  branches  of  the  government  has  not  worked  for  the  great  advantage  of  either. 
There  has  been  much  lost  motion  in  the  machinery,  due  to  the  lack  of  cooperation 
and  interchange  of  views  face  to  face  between  the  representatives  of  the  executive 
and  the  members  of  the  two  legislative  branches  of  the  government.  It  was  never 
intended  that  they  should  be  separated  in  the  sense  of  not  being  in  constant  effec¬ 
tive  touch  and  relationship  to  each.  The  legislative  and  the  executive  each  per¬ 
forms  its  own  appropriate  function,  but  these  functions  must  be  coordinated. 
Time  and  time  again  debates  have  arisen  in  each  house  upon  issues  which  the  in¬ 
formation  of  a  particular  department  head  would  have  enabled  him,  if  present, 
to  end  at  once  by  a  simple  explanation  or  statement.  Time  and  time  again  a  force¬ 
ful  and  earnest  presentation  of  facts  and  arguments  by  the  representatives  of  the 
executive  whose  duty  it  is  to  enforce  the  law  would  have  brought  about  a  useful 
reform  by  amendment,  which  in  the  absence  of  such  a  statement  has  failed  of  pas¬ 
sage.  I  do  not  think  I  am  mistaken  in  saying  that  the  presence  of  the  members 
of  the  cabinet  on  the  floor  of  each  House  would  greatly  contribute  to  the  enactment 
of  beneficial  legislation.  Nor  would  this  in  any  degree  deprive  either  the  legis- 


186 


PROCEEDINGS  OF  THE 


the  support  of  President  Wilson.  By  thus  bringing  the  executive  and 
legislative  departments  face  to  face  for  purposes  of  consultation  and  col¬ 
laboration,  the  time  of  the  legislature  would  be  economized,  it  would 
afford  a  means  by  which  congress  could  keep  itself  better  informed  of 
what  the  executive  departments  are  doing,  it  would  conduce  to  harmony 
of  action  between  the  two  departments  and  would  relieve  the  executive 
from  unnecessary  criticism  based  on  misunderstanding  and  want  of  in¬ 
formation.  Ex-President  Taft  says: 

The  ignorance  that  congress  at  times  has  of  what  is  actually  going  on 
in  the  executive  department,  and  the  fact  that  hours  of  debate  and  pages 
of  the  Congressio?ial  Record  might  be  avoided  by  the  answer  to  a  single 
question  by  a  competent  cabinet  officer  on  the  floor  of  either  house  is 
frequently  brought  sharply  to  the  attention  of  competent  observers.28 

There  are  few  measures  which  congress  is  called  on  to  consider  to  which 
the  heads  of  departments  are  not  competent  to  contribute  the  sort  of 
information  which  is  necessary  to  intelligent  legislation,  yet  under  the 
present  system  of  working  at  arms  length,  the  only  official  means  of 
securing  information  is  through  the  slow  and  circumlocutory  process  of 
formal  resolution  addressed  to  the  executive  and  a  written  reply.29 

lative  or  the  executive  of  the  independence  which  separation  of  the  two  branches 
has  intended  to  promote.  It  would  only  facilitate  their  cooperation  in  the  public 
interest.” 

28  Article  on  “The  Presidency”  in  the  Independent,  1913,  p.  1197.  Cf.,  also, 
an  editorial  in  the  Nation  for  December  26,  1912. 

29  As  an  illustration  of  the  inconveniences  resulting  from  the  present  system 
which  excludes  cabinet  members  from  occupying  seats  in  congress  the  following 
passages  may  be  cited  from  the  Congressional  Record  of  January  29,  1862  (vol.  46, 
pt.  i,  p.  549) .  The  house  was  considering  a  bill  to  authorize  the  issue  of  legal  tender 
treasury  notes. 

Mr.  Roscoe  Conkling:  “I  understand  the  gentleman  to  say  that  no  measure  like 
that  he  is  about  to  discuss  was  ever  entertained  in  debate,  or,  if  I  understand  him, 
ever  recommended  by  any  department  of  the  government;  and  I  would  like  to 
inquire  of  the  gentleman  from  Ohio  (Mr.  Pendleton),  whether  he  is  prepared  to 
answer,  and  if  not,  of  the  chairman  of  the  committee  of  ways  and  means,  or  the 
gentleman  who  reported  this  bill,  whether  the  present  secretary  of  the  treasury 
is  in  favor  of  making  paper  a  legal  tender;  and  also  whether  he  is  prepared  to 
recommend  to  congress  the  adoption  of  that  measure?  I  will  say,  with  the  per¬ 
mission  of  the  gentleman,  that,  for  once,  I  should  like  very  much  to  know  what  is 
the  opinion  of  the  secretary  of  the  treasury,  embracing  not  only  the  extent  of  the 
constitutional  power  but  the  economic  and  political  extent,  if  that  is  involved  in 
the  proposed  measure,  of  making  paper  a  legal  tender  in  payments  of  debts.” 

Mr.  Spaulding:  “In  reply  to  the  question  of  my  colleague,  I  will  say  that  the 


AMERICAN  POLITICAL  SCIENCE  ASSOCIATION 


187 


In  this  connection,  I  venture  the  suggestion  that  the  executive  should 
be  permitted  to  designate  experts  like  the  French  Commissaires  du 
Gouvernement  to  appear  before  the  houses  for  the  purpose  of  explaining 
measures  of  an  administrative  and  technical  character.  An  assistant 
secretary,  the  chief  of  a  bureau  or  a  commissioner  who  has  had  years  of 
practical  experience  in  dealing  with  the  problems  upon  which  it  is  pro¬ 
posed  to  legislate,  may  be  presumed  to  be  better  informed  concerning 
the  expediency  and  practicability  of  such  legislation  than  the  average 
member  of  congress.  A  brief  explanation  by  such  an  expert  would,  in 
many  cases,  throw  more  light  upon  a  proposed  bill  than  days  of  discus¬ 
sion  by  members  whose  information  lacks  the  definiteness  and  accuracy 
which  comes  from  practical  experience  and  first  hand  knowledge. 

A  more  important  advantage  still  from  allowing  cabinet  members 
seats  in  congress  is  that  it  would  enable  the  President  to  exert,  in  an  open 
and  official  manner,  that  influence  upon  legislation  which  the  country 
more  and  more  expects  of  him,  and  which  his  responsibility  to  the  nation 
implies.  As  it  is,  his  official  power  is  exhausted  when  he  has  delivered 
his  message  to  the  two  houses  for  neither  he  nor  his  ministers  may  follow 
up  his  recommendations  by  means  of  oral  explanation,  argument  or  per¬ 
suasion. 

It  is  somewhat  singular  that  congress  is  one  of  the  few  legislative 
bodies  that  attempts  to  do  its  work  almost  entirely  without  expert  assist¬ 
ance — without  the  aid  of  parliamentary  counsel,  without  bill  drafting 
and  revising  machinery  and  without  legislative  and  reference  agencies, 
and  until  now  it  has  shown  little  inclination  to  regard  with  favor  proposals 
looking  toward  the  introduction  of  such  agencies. 

Lastly,  the  time  has  come  when  it  is  worth  considering  whether  con¬ 
gress  should  not  abandon  the  practice  of  embodying  purely  administra¬ 
tive  details  in  the  statutes  and  leave  to  the  executive  a  larger  power  of 
dealing  with  such  matters  by  orders  and  regulations.  The  result  would 

Secretary  of  the  Treasury  has  been  called  upon  for  his  opinion  in  regard  to  the  bill. 
We  were  assured  that  his  reply  would  be  sent  to  us  yesterday,  but  we  did  not  re¬ 
ceive  it.  We  expect  his  answer  every  hour.” 

Mr.  Roscoe  Conkling:  “I  am  not  certain  that  I  understand  what  my  colleague 
said.  Does  he  expect  a  letter  from  the  Secretary  of  the  Treasury  which  will  con¬ 
tain  his  views  on  the  financial  question  and  also  on  the  legal  question?” 

Mr.  Spaulding:  “Upon  this  bill  specifically?” 

Mr.  Roscoe  Conkling:  “Containing  the  legal  tender  clause?” 

Mr.  Spaulding:  “Yes,  sir.” 

Mr.  Pendleton:  “I  can  not  answer  the  question  of  the  gentleman,  so  far  as  the 
opinions  of  the  present  secretary  of  the  treasury  are  concerned.” 


188 


PROCEEDINGS  OF  THE 


be  not  only  to  simplify  our  statutory  law  and  give  it  a  more  scientific 
character,  but  it  would  facilitate  the  process  of  legislation  by  confining 
the  consideration  of  congress  to  the  main  principles  involved,  and  thereby 
avoiding  waste  of  time  upon  minor  questions  and  details.  Long  and 
complicated  measures  encumbered  with  a  mass  of  details  of  an  administra¬ 
tive  character  cannot  be  intelligently  considered  by  an  assembly  of  four 
or  five  hundred  members.  On  the  face  of  it,  nothing  seems  more  pre¬ 
posterous  than  to  submit  such  a  draft  to  an  assembly  of  this  sort.50 
Congress  is  unfitted  for  framing  and  discussing  administrative  regulations 
and  the  task  should  be  left  to  the  executive  officers  as  is  the  practice  in 
England,  and,  to  a  still  greater  extent,  on  the  continent.  There,  as  is 
well  known,  the  statutes  are  framed  in  general  terms,  embodying  a  state¬ 
ment  of  the  main  principles  and  it  is  left  to  the  minister  to  supply  the 
necessary  administrative  details  for  putting  the  statute  into  operation. 

In  England,  moreover,  the  statutes  frequently  empower  the  ministers 
to  issue  orders  in  council  having  the  same  force  as  acts  of  parliament, 
subject  only  to  the  condition  that  they  shall  be  laid  on  the  table  of  both 
houses  and  if  not  expressly  disapproved  they  become  law.  They  are 
known  as  “statutory  orders”  and  are  prepared  by  the  departments  within 
whose  jurisdictions  they  properly  belong.  They  are  printed  like  the  acts 
of  parliament  and,  in  quantity,  they  constitute  a  very  much  larger  mass  of 
legislation  than  do  the  statutes.31  The  English  have  found  no  danger 
in  this  extensive  delegation  of  legislative  power  to  the  executive  depart¬ 
ment;  on  the  contrary,  it  is  the  testimony  of  all  the  writers  on  English 
parliamentary  procedure  that  it  is  both  wise  and  necessary.  Mr.  Lowell 
says : 

In  spite  of  the  potential  control  retained  by  the  houses  over  stat¬ 
utory  orders,  the  growing  habit  of  delegating  authority  to  make  them 
involves  a  substantial  transfer  of  power  from  parliament  to  the  executive 
branch  of  the  government,  a  transfer  due  in  part  to  the  increasing  diffi¬ 
culty  of  legislation.32 

Formerly,  the  English  statutes  went  into  great  detail  and  attempted, 
as  American  statutes  now  do,  to  embody  the  complete  legislative  will, 
but  the  inherent  difficulties  of  modern  legislation  made  its  abandonment 

30  Compare  Courtenay  Ilbert,  Legislative  Forms  and  Methods,  pp.  40-41. 

31  Compare  the  testimony  of  James  Bryce  in  the  hearings  before  the  house  com¬ 
mittee  on  library  on  various  bills  proposing  the  establishment  of  a  congressional 
reference  bureau,  February  26, 1912.  pp.  14,  20. 

32  The  Government  of  England,  vol.  i,  p.  366. 


AMERICAN  POLITICAL  SCIENCE  ASSOCIATION 


189 


necessary.  If  congress  were  to  relieve  itself,  as  the  British  parliament 
has  lately  done,  of  the  task  of  administrative  legislation  and  delegate  a 
large  power  of  subsidiary  legislation  to  the  executive  department  which 
is  better  fitted  for  the  task,  I  venture  to  say  that  it  would  not  only  sim¬ 
plify  the  problem  of  legislation,  but  it  would  result  in  a  substantial  im¬ 
provement  in  the  quality  of  the  legislative  output. 

The  signs  indicate  that  we  are  tending  slowly  toward  the  solution 
which  I  have  indicated  above.  Mr.  Taft’s  special  message  advocating 
the  admission  of  cabinet  members  to  seats  in  congress,  the  new  method 
of  executive  communication  with  congress  introduced  by  President 
Wilson,  his  well  known  desire  to  establish  closer  personal  relations 
between  the  legislative  and  executive  departments,  his  willingness  to 
assume  responsibility  for  carrying  out  the  policies  of  his  party  and  the 
excellent  results  which  have  attended  the  adoption  of  this  theory  of  ex¬ 
ecutive  leadership  by  several  recent  governors  (notably  by  Hughes  of  New 
York,  Wilson  of  New  Jersey  and  Cox  of  Ohio),33  are  indications  of  the 
tendency  toward  a  new  conception  of  executive  leadership.  Moreover, 
the  theory  is  in  harmony  with  one  of  the  strongest  political  tendencies 
of  the  time,  namely,  the  growing  disposition  to  exalt  the  executive  and 
to  concentrate  larger  powers  of  leadership  and  responsibility  in  his  hands. 
It  is  the  inevitable  result  of  a  reaction  against  the  evils  of  our  exaggerated 
system  of  checks  and  balances  and  of  divided  responsibility.  Public 
opinion  approves  the  new  theory  of  executive  leadership  in  legislation. 
We  read  from  an  editorial  in  a  recent  number  of  one  of  the  most  reputable 
magazines  the  following  words: 

Practically  speaking,  the  popular  mind  accepts  the  President  as 
head  of  the  legislative  branch  of  the  national  government  .... 
the  public  expects  the  President  to  manage  congress.  If  he  does  not 
do  this,  he  is  not  considered  a  successful  President.34 

The  truth  of  this  statement  may  be  doubted,  but  it  unquestionably 
represents  the  view  of  a  large  and  increasing  number  of  persons.  Of 
course  it  is  not  to  be  expected,  nor  is  it  desirable,  that  congress  should 
abdicate  its  legislative  power  in  favor  of  the  executive,  but  if  it  is  to  do 
its  work  smoothly  and  efficiently,  its  forces  must  be  unified  and  it  must 

33  Compare  an  article  by  Mr.  J.  M.  Mathews  entitled  “The  new  Role  of  the 
Governor”  in  The  American  Political  Science  Review,  May,  1912,  pp.  216  et  seq. 

34  World’s  Work,  November,  1913,  p.  11 ;  cf.,  also,  a  recent  editorial  in  the  Nation, 

vol.  96,  p.  380. 


190 


PROCEEDINGS  OF  THE 


have  leadership.  The  signs  seem  to  indicate  that  this  is  to  come  from 
the  President,  who,  in  the  course  of  the  evolution  of  the  Presidential 
office,  is  coming  more  and  more  to  be  regarded,  as  Mr.  Wilson  has  re¬ 
marked,  not  only  as  the  legal  executive  but  the  responsible  leader  of  his 
party,  and  the  guide  of  the  nation  in  the  formulation  of  its  political 
policies.35 


38  Constitutional  Government,  p.  75. 


